CHAPTER 175M. FAMILY AND MEDICAL LEAVE - … · 2017-08-02 · 3 _____ Initials of Petitioner former member of the National Guard or Reserves) who is undergoing medical treatment,

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Initials of Petitioner

Initiative Petition for a Law Establishing a Paid Family and Medical Leave Insurance Program.

Be it enacted by the People, and by their authority:

SECTION 1: The General Laws are hereby amended by inserting after chapter 175L the

following:-

CHAPTER 175M. FAMILY AND MEDICAL LEAVE

Section 1. - Definitions

The following words and phrases as used in this chapter shall have the following meanings,

unless the context clearly requires otherwise:

(a) “Average weekly wage” has the same meaning as provided by subsection (w) of

section 1 of chapter 151A and shall be calculated using the base period earnings as defined by

subsection (a) of section 1 of chapter 151A. In the case of a self-employed individual, “average

weekly wage” means one twenty-sixth of total earnings of such individual in the two highest

quarters of the twelve months preceding such individual’s application for benefits under this

chapter.

(b) “Benefit year” is the period of fifty-two consecutive weeks beginning on the date that

leave under this chapter commences for the covered individual.

(c) “Child” means a biological, adopted, or foster child, stepchild or legal ward, a child to

whom the covered individual stands in loco parentis, or a person to whom the covered individual

stood in loco parentis when the person was a minor child.

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(d) “Contributions” means the payments made by an employer, a covered business entity,

an employee, or a self-employed individual to the family and employment security trust fund, as

required by this chapter.

(e) “Covered business entity” means a business or trade that contracts with a self-

employed individual for services and is required to report the payment for services to such

individual on IRS Form 1099-MISC.

(f) “Covered individual” means either (a) an employee who meets the financial eligibility

requirements of subsection (a) of section 24 of chapter 151A, provided that all such employment

has been with an employer in the Commonwealth; (b) a self-employed individual who has

elected coverage under subsection (i) of section 2 of this chapter; or (c) a former employee who

met the financial eligibility requirements of subsection (a) of section 24 of chapter 151A at the

time of the former employee’s separation from employment, provided that all such employment

has been with an employer in the Commonwealth, who has been separated from employment for

26 weeks or less at the start of the former employee’s family or medical leave.

(g) “Covered servicemember” means either (a) a member of the Armed Forces (including

a member of the National Guard or Reserves) who is undergoing medical treatment,

recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary

disability retired list, for a serious injury or illness that was incurred by the member in the line of

duty on active duty in the Armed Forces (or a serious injury or illness that existed before the

beginning of the member's active duty and was aggravated by service in the line of duty on

active duty in the Armed Forces); or (b) a former member of the Armed Forces (including a

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former member of the National Guard or Reserves) who is undergoing medical treatment,

recuperation, or therapy, for a serious injury or illness that was incurred by the member in line of

duty on active duty in the Armed Forces (or existed before the beginning of the member's active

duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that

manifested itself before or after the member was discharged or released from service.

(h) “Department” means the Massachusetts department of family and medical leave as

established under section 8 of this chapter.

(i) “Director” means the director of the Massachusetts department of family and medical

leave.

(j) “Domestic Partner” means a person at least eighteen years of age who: (1) is

dependent upon the covered individual for support as shown by either unilateral dependence or

mutual interdependence, as evidenced by a nexus of factors including, but not limited to,

common ownership of real or personal property, common householding, children in common,

signs of intent to marry, shared budgeting, and the length of the personal relationship with the

covered individual; or (2) has registered as the domestic partner of the covered individual with

any registry of domestic partnerships maintained by the employer of either party, or in any state,

county, city, town, or village in the United States.

(k) “Employee” has the same meaning as provided by section 1(h) of chapter 151A,

provided that, notwithstanding section 1(h) of chapter 151A or any other special or general law

to the contrary, Family Child Care Providers, as defined in section 17(a) of chapter 15D, shall be

deemed employees for purposes of this chapter.

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(l) “Employer” has the same meaning as provided in subsection (i) of section 1 of chapter

151A; provided, however, that for the purposes of this chapter, the department of early education

and care shall be deemed the employer of family child care providers, as defined in subsection

(a) of section 17 of chapter 15D, and the PCA quality home care workforce council established

in section 71 of chapter 118E shall be the employer of personal care attendants, as defined in

section 70 of said chapter 118E; provided that any employer not subject to this chapter may

become a covered employer under this chapter by notifying the department of family and

medical leave and completing the procedure established by the department; and provided further,

that a municipality, district, political subdivision or its instrumentalities shall not be subject to

this chapter unless it adopts this chapter under section 10.

(m) “Employment” has the same meaning as provided by section 1(k) of chapter 151A.

(n) “Employment benefits” means all benefits provided or made available to employees

by an employer, including, but not limited to, group life insurance, health insurance, disability

insurance, sick leave, annual or vacation leave, educational benefits, and pensions.

(o) “Family leave” means leave taken pursuant to paragraph (1) of subsection (a) of

section 2 of this chapter.

(p) “Family leave benefits” means wage replacement paid pursuant to section 3 of this

chapter and provided in accordance with section 2 of this chapter to a covered individual while

on family leave.

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(q) “Family member” means the spouse, domestic partner, child, parent, or parent of a

spouse or domestic partner of the covered individual; a person who stood in loco parentis to the

covered individual when the covered individual was a minor child; or a grandchild, grandparent,

or sibling of the covered individual.

(r) “Health care provider” means an individual licensed to practice medicine, surgery,

dentistry, chiropractic, podiatry, midwifery, or osteopathy, or any other individual determined by

the department to be capable of providing health care services.

(s) “Medical leave” means leave taken pursuant to paragraph (2) of subsection (a) of

section 2 of this chapter.

(t) “Medical leave benefits” means wage replacement paid pursuant to section 3 of this

chapter and provided in accordance with section 2 of this chapter to a covered individual while

on medical leave.

(u) “Qualifying exigency” means a need arising out of a covered individual’s family

member’s active duty service or notice of an impending call or order to active duty in the Armed

Forces, including but not limited to providing for the care or other needs of the military

member’s child or other family member, making financial or legal arrangements for the military

member, attending counseling, attending military events or ceremonies, spending time with the

military member during a rest and recuperation leave or following return from deployment, or

making arrangements following the death of the military member.

(v) “Self-employed individual” means a sole proprietor, member of a limited liability

company or limited liability partnership, or an individual whose income for services rendered are

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reported by a covered business entity on IRS Form 1099-MISC; provided that such individual

shall be based in Massachusetts.

(w) “Serious health condition” means an illness, injury, impairment, or physical or

mental condition that involves (1) inpatient care in a hospital, hospice, or residential medical

facility; (2) continuing treatment by a health care provider.

(x) “Wages” has the same meaning as provided by subsection (s) of section 1 of chapter

151A.

(y) “Weekly benefit amount” means the amount of wage replacement paid to a covered

individual on a weekly basis while on family or medical leave, as provided by section 3 of this

chapter.

Section 2. - Eligibility for leave and benefits

(a) Beginning eighteen months after the effective date of this act:

(1) Family leave shall be available to any covered individual for any of the following

reasons: (i) to bond with the covered individual's child during the first 12 months after the

child's birth or the first 12 months after the placement of the child for adoption or foster care

with the covered individual; (ii) to care for a family member with a serious health condition; (iii)

because of any qualifying exigency arising out of the fact that a family member is on active duty

or has been notified of an impending call or order to active duty in the Armed Forces; or (iv) in

order to care for a family member who is a covered servicemember.

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(2) Medical leave shall be available to any covered individual with a serious health

condition.

(b) (1) A covered individual is eligible for a maximum of 16 weeks of family leave in a

benefit year; provided, however, that a covered individual taking family leave in order to care for

a covered servicemember pursuant to subsection (a)(1)(iv) of this section shall be eligible for a

maximum of 26 weeks of family leave in a benefit year. A covered individual is eligible for

medical leave for a maximum of 26 weeks in a benefit year. A covered individual may take an

aggregate of no more than 26 weeks of family and medical leave under this chapter in the same

benefit year. Nothing in this Section shall prevent a covered individual from taking a medical

leave during pregnancy and/or recovery from childbirth if supported by documentation by a

health care provider, immediately followed by family leave, in which case the seven-day waiting

period for family leave will not be required.

(2) (i) Leave under subsection (a)(1)(i) of this section shall not be taken by an employee

intermittently or on a reduced leave schedule unless the employee and the employer of the

employee agree otherwise. Leave under subsection (a)(1)(ii) of this section, subsection (a)(1)(iv)

of this section, or subsection (a)(2) of this section may be taken intermittently or on a reduced

leave schedule by an employee when medically necessary. Leave under subsection (a)(1)(iii) of

this section may be taken intermittently or on a reduced leave schedule by an employee.

(ii) Leave under subsection (a)(1) or (a)(2) of this section may be taken intermittently or

on a reduced leave schedule by a self-employed person or former employee.

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(iii) The taking of leave intermittently or on a reduced leave schedule pursuant to this

paragraph shall not result in a reduction in the total amount of leave to which the covered

individual is entitled under this chapter.

(c) While on family or medical leave, a covered individual shall receive a weekly benefit

amount, as provided in section 3 of this chapter.

(d) An employee who has taken family and/or medical leave shall be restored to the

employee’s previous position, or to an equivalent position, with the same status, pay,

employment benefits, length of service credit, and seniority as of the date of leave. An employer

shall not be required to restore an employee who has taken family and/or medical leave to the

previous or to an equivalent position if other employees of equal length of service credit, and

status in the same or equivalent positions have been laid off due to economic conditions or other

changes in operating conditions affecting employment during the period of leave; provided,

however, that the employee who has taken leave shall retain any preferential consideration for

another position to which the employee was entitled as of the date of leave.

(e) The taking of family and/or medical leave shall not affect an employee's right to

accrue vacation time, sick leave, bonuses, advancement, seniority, length of service credit or

other employment benefits, plans or programs. During the duration of an employee’s family

and/or medical leave, the employer shall continue to provide for and contribute to the

employee’s employment-related health insurance benefits, if any, at the level and under the

conditions coverage would have been provided if the employee had continued working

continuously for the duration of such leave.

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(f) Subsections (d) and (e) of this section shall not apply to a self-employed individual

taking family or medical leave under this chapter or a person who was a former employee as

defined in clause (c) of subsection (f) of section 1 of this chapter when that person began taking

family or medical leave under this chapter.

(g) Nothing in this chapter shall be construed so as to affect any company policy, or other

federal, state, or municipal law which provides for greater or additional rights to leave than those

provided for by this chapter; or be deemed to diminish the rights, privileges, or remedies of any

employee under any collective bargaining agreement or employment contract; or be construed to

allow an employer to compel an employee to exhaust rights to any sick, vacation, or personal

time prior to or while taking leave under this chapter.

(h) Leave taken under this chapter shall run concurrently with leave taken under either

the Massachusetts Parental Leave Act, section 105D of chapter 149 or under the Family and

Medical Leave Act of 1993, 29 U.S.C. sec. 2611, et seq.

(i) A self-employed individual may elect coverage under this chapter and become a

covered individual for an initial period of not less than three years. The self-employed individual

must file a notice of election in writing with the department and make contributions as required

by section 6 of this chapter to the trust fund established by section 7 of this chapter. A self-

employed individual who elects coverage shall not be eligible for benefits until that individual

has made such required contributions for at least two calendar quarters of the individual’s last

four completed calendar quarters. The election becomes effective on the date of filing the notice.

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The department shall establish a process by which self-employed individuals elect coverage

under this chapter.

Section 3. - Schedule of Paid Benefits

(a) No family or medical leave benefits shall be payable during the first 7 calendar days

of such leave; provided, however, an employee may but shall not be required to utilize accrued

sick or vacation pay or other paid leave provided under an employer policy during the first 7

calendar days of such leave. Employees taking family or medical leave for which benefits are

not payable under this subsection shall be entitled to the protections of subsections (d) and (e) of

section 2 and section 9 of this chapter.

(b)(1) The weekly benefit amount shall be ninety (90%) percent of the covered

individual’s average weekly wage.

(2) The maximum weekly benefit amount determined under clause (1) of this subsection

shall not exceed one thousand ($1,000.00) dollars per week. Commencing January 1, 2021, the

department shall adjust annually the maximum weekly benefit amount to reflect changes in the

United States Bureau of Labor Statistics Consumer Price Index for the Boston-Cambridge-

Quincy consolidated metropolitan statistical area for all urban consumers, all goods, or its

successor index.

(3) For a covered individual who takes leave on an intermittent or reduced leave

schedule, the weekly benefit amount shall be prorated as determined by the department.

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(c) The weekly benefit amount shall be reduced by the amount of wages or wage

replacement a covered individual receives for that period under any of the following while on

family or medical leave: (i) any government program or law, including but not limited to

workers’ compensation under chapter 152, other than for permanent partial disability incurred

prior to the family or medical leave claim, or under other state or federal temporary or permanent

disability benefits law, or (ii) a permanent disability policy or program of an employer.

The weekly benefit amount shall not be reduced by the amount of wage replacement an

employee receives while on family or medical leave under any of the following, unless the

aggregate amount an employee would receive exceeds the employee’s average weekly wage: (i)

a temporary disability policy or program of an employer; or (ii) a paid family, or medical leave

policy of an employer. If an employer makes payments to an employee during any period of

family or medical leave that are equal to or in excess of the amount required under this section,

the employer shall be reimbursed out of any benefits due or to become due from the trust fund

established in section 7 of this chapter for family or medical leave benefits for that employee

covering the same period of time as the payments made by the employer.

Section 4. - Notice Requirements

(a) Each employer and covered business entity shall keep posted in a conspicuous place

on each of its premises a workplace notice prepared or approved by the department providing

notice of benefits available under this chapter. The workplace notice shall be issued in English,

Spanish, Chinese, Haitian Creole, Italian, Portuguese, Vietnamese, Laotian, Khmer, Russian, and

any other language that is the primary language of at least 10,000 or one-half of one percent of

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all residents of the commonwealth. The required workplace notice shall be in English and each

language other than English which is the primary language of five or more employees or self-

employed individuals of that workplace, if such notice is available from the department.

Each employer shall issue to each employee not more than 30 days from the beginning

date of the employee’s employment, the following written information provided or approved by

the department in the employee’s primary language: (i) an explanation of the availability of

family and medical leave benefits provided under this chapter, including rights to reinstatement

and continuation of health insurance; (ii) the employee’s contribution amount and obligations

under this chapter; (iii) the name and mailing address of the employer; (iv) the identification

number assigned to the employer by the department; (v) instructions on how to file a claim for

family and medical leave benefits; (vi) the mailing address, email address and telephone number

of the department; and (vi) any other information deemed necessary by the department. Delivery

is made when an employee provides written acknowledgement of receipt of the information.

Each covered business entity shall provide to each self-employed individual with whom it

contracts, at the time such contract is made, the following written information provided or

approved by the department in the self-employed individual’s primary language: (i) an

explanation of the availability of family and medical leave benefits provided under this chapter

and the procedures established by the department for self-employed individuals to become

covered individuals; (ii) the self-employed individual’s contribution amount and obligations

under this chapter if the self-employed individual were to become a covered individual; (iii) the

name, mailing address and email address of the covered business entity; (iv) the identification

number assigned to the covered business entity by the department; (v) instructions on how to file

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a claim for family and medical leave benefits; (vi) the address and telephone number of the

department; and (vi) any other information deemed necessary by the department. Delivery is

made when a self-employed individual provides written acknowledgement of receipt of the

information.

Any employer or covered business entity who fails to comply with this subsection shall

be issued, for a first violation, a civil penalty of fifty ($50) dollars per employee and per self-

employed individual with whom it has contracted, and for each subsequent violation, a civil

penalty of three hundred ($300) dollars per employee or self-employed individual with whom it

has contracted. The employer or covered business entity shall have the burden of demonstrating

compliance with this subsection.

(b) The employee shall give at least two (2) weeks’ notice to the employer of the

anticipated starting date of the leave, the anticipated length of the leave and the expected date of

return or shall provide notice as soon as practicable if the delay is for reasons beyond the

employee’s control. If an employer fails to provide notice of this chapter as required under

subsection (a) of this section, the employee’s notice requirement shall be waived.

Section 5. - Certification Requirements

(a) A covered individual shall provide to the department certification supporting a request

for leave under this chapter as soon as practicable; provided, however, that the department shall

not delay the payment of benefits for the period in which leave is taken for covered individuals

entitled to a weekly benefit under section 3 on the basis that the department has not yet received

the certification.

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(1) Certification for a covered individual taking medical leave shall be sufficient if it

states the date on which the serious health condition commenced, the probable duration of the

condition, and the appropriate medical facts within the knowledge of the health care provider as

required by the department.

(2) Certification for a covered individual taking family leave because of the serious

health condition of a family member of the covered individual shall be sufficient if it states the

date on which the serious health condition commenced, the probable duration of the condition,

the appropriate medical facts within the knowledge of the health care provider as required by the

department, a statement that the covered individual is needed to care for the family member, and

an estimate of the amount of time that the covered individual is needed to care for the family

member.

(3) Certification for a covered individual taking family leave because of the birth of a

child of the covered individual shall be sufficient if the covered individual provides either the

child’s birth certificate or a document issued by the health care provider of the child, or the

health care provider of the person who gave birth, stating the child’s birth date.

(4) Certification for a covered individual taking family leave because of the placement of

a child with the covered individual for adoption or foster care shall be sufficient if the covered

individual provides a document issued by the health care provider of the child, an adoption or

foster care agency involved in the placement, or by other individuals as determined by the

department that confirms the placement and the date of placement. To the extent that the status

of a covered individual as an adoptive or foster parent changes while an application for benefits

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is pending, or while the covered individual is receiving benefits, the covered individual is

required to notify the department of such change in status in writing. The department of children

and families may confirm in writing the status of the covered individual as an adoptive or foster

parent while an application for benefits is pending or while a covered individual is receiving

benefits.

(5) Certification for a covered individual taking family leave because of a qualifying

exigency shall be sufficient if it includes (i) a copy of the family member’s active-duty orders;

(ii) other documentation issued by the Armed Forces; or (iii) other documentation permitted by

the department.

(6) Certification for a covered individual taking family leave to care for a family member

who is a covered servicemember shall be sufficient if it states: (i) the date on which the serious

health condition commenced, the probable duration of the condition, the appropriate medical

facts within the knowledge of the health care provider as required by the department, a statement

that the covered individual is needed to care for the family member, an estimate of the amount of

time that the covered individual is needed to care for the family member; and (ii) an attestation

by the covered individual that the health condition is connected to the covered servicemember’s

military service as required by this chapter.

(b) Any medical or health information required under this section shall be treated as

confidential and not disclosed except with permission from the covered individual who provided

it unless disclosure is otherwise required by law. Nothing in this section shall be construed to

require a covered individual to provide as certification any information from a health care

provider that would be in violation of section 1177 of the Social Security Act, 42 U.S.C. 1320d-

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6, or the regulations promulgated under section 264(c) of the Health Insurance Portability and

Accountability Act of 1996, 42 U.S.C. 1320d-2 note.

(c) A covered individual shall not be eligible to receive family or medical leave benefits

if the department finds, through a process it shall establish through regulations, that the covered

individual, for the purpose of obtaining these benefits, has willfully made a false statement or

representation, with actual knowledge of the falsity thereof, or has willfully withheld a material

fact concerning the facts required to be certified pursuant to this subsection.

Section 6. – Contributions for Family and Medical Leave Benefits

(a) For each employee the employer shall remit to the trust fund established under section

7 of this chapter contributions in the form and manner determined by the department.

Contributions shall commence on July 1, 2019, and be collected at the rate of .63% of the

employee’s wages. The contribution rate set forth in this section shall be adjusted annually as

specified in subsection (e) of section 7.

(b) A self-employed individual who is electing coverage under subsection (i) of section 2

of this chapter shall be responsible for one-half of the percentage contribution set forth in

subsection (a) of this section on that individual’s income from self-employment.

(c) An employer may deduct not more than fifty (50%) percent of the contribution required

for an employee by subsection (a) of this section from that employee’s wages, and must remit the

full contribution required under subsection (a) of this section to the trust fund.

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(d) A covered business entity shall remit one-half of the percentage contribution required

under subsection (a) of this section to the trust fund for the income paid to each self-employed

individual with whom it contracts for services and for whom it must report payments for services

to such an individual on IRS Form 1099-MISC.

(e) Contributions to the trust fund under this section shall not be required for employees’

wages above the contribution and benefit base limit established annually by the United States

Social Security Administration for purposes of the Old-Age, Survivors, and Disability Insurance

program limits pursuant to 42 U.S.C. § 430.

Section 7. – Establishment of the Family and Employment Security Trust Fund

(a) There is established in the Office of the State Treasurer and Receiver General,

separate and apart from all public monies or funds of the state, a family and employment security

trust fund, hereinafter referred to as the “trust fund” which shall be administered by the state

treasurer exclusively for the purposes of this chapter. Any sums received under this section shall

not be considered revenue of the commonwealth but shall be held in trust for the exclusive

benefit of covered individuals eligible for benefits under this chapter, and for the administration

of the department, and, subject to appropriation, shall be expended by the director as required by

this chapter to pay family and medical leave program benefits to covered individuals eligible to

receive benefits, and to pay the administrative costs of the department. The trust fund shall

consist of: (i) contributions collected pursuant to section 6 of this chapter together with any

interest earned thereon; (ii) property or securities acquired through the use of money belonging

to the trust fund together with any earnings of such property and securities; (iii) fines and

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penalties collected under this chapter; and (iv) other money received from any source, including

any grants, gifts, bequests or money authorized by the general court or other party specifically

designated to be credited to the trust fund. Money remaining in the fund at the end of a fiscal year

shall not revert to the General Fund. Amounts credited to the trust fund shall not be appropriated

for any purpose other than the payment of benefits to covered individuals eligible for benefits

under this chapter, and for the administration of the department. The trust fund shall maintain an

annualized amount of at least one hundred forty (140%) percent of the previous fiscal year's

expenditure for benefits paid and for the administration of the department.

(b) The costs of administering the department under this chapter shall not exceed five

(5%) percent of the amount deposited under subsection (a) for each fiscal year following the

initial year benefits have been paid under section 2 of this chapter. Monies in the trust fund may

be deposited in any depository bank in which general funds of the commonwealth may be

deposited, but such monies shall not be commingled with other commonwealth funds and shall

be maintained in separate accounts on the books of the depository bank. Such monies shall be

secured by the depository bank to the same extent and in the same manner as required by the

general depository law of the commonwealth, and collateral pledged for this purpose shall be

kept separate and distinct from any other collateral pledged to secure other funds of the

commonwealth.

(c) Subject to appropriation, the director shall expend money from the trust fund to

provide weekly benefits under section 3. Family and medical leave benefits shall be paid from

the trust fund to covered individuals eligible for benefits. An employer’s bankruptcy or

noncompliance with this chapter shall not interfere with an employee’s ability to collect family

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and medical leave benefits under this chapter. Family or medical leave benefits paid from the

trust fund to such an employee may be recovered through bankruptcy proceedings or from the

noncomplying employer. The director shall institute administrative and legal action to recover

family or medical leave benefits paid through the trust fund.

(d) To accumulate funds for the payment of family and medical leave benefits and

administrative costs, employers, covered business entities, and self-employed individuals shall

make contributions as required under section 6 of this chapter, and transmit those contributions to

the trust fund in the manner determined by the director.

(e) On or before October first, 2021, and annually thereafter, the director shall fix the

contribution rate set forth in subsection (a) of section 6 for the coming calendar year in the

manner described in this subsection. The director shall first certify to the secretary of the

executive office of labor and workforce development and publish, pursuant to section 2 of

chapter 30A, in the Massachusetts Register the following information: i) the total amount of

benefits paid by the department during the previous fiscal year; ii) the total amount remaining in

the trust fund at the close of such fiscal year; iii) the total amount equal to one hundred forty

(140%) percent of the previous fiscal year’s expenditure for benefits paid and for the

administration of the department; iv) the amount by which the total amount remaining in the trust

fund at the close of the previous fiscal year is less than or greater than one hundred forty (140%)

percent of the previous fiscal year’s expenditure for benefits paid and for the administration of

the department; and v) the amount by which the contribution rate set forth in subsection (a) of

section 6 shall be adjusted to ensure that the trust fund shall maintain or achieve an annualized

amount of at least one hundred forty (140%) percent of the previous fiscal year's expenditure for

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benefits paid and for the administration of the department. The contribution rate adjustment, if

any, made as the result of the director’s certification and report under this subsection shall

supersede the rate previously set forth in subsection (a) of section 6 of this chapter, and shall

become effective January first of the coming calendar year.

On or before October first, 2021 and annually thereafter, the director shall publish a

report providing the following information concerning the family and medical leave program for

the previous fiscal year: total eligible claims; the percentage of such claims attributable to

medical leave; family leave other than the birth, adoption or fostering of a child; family leave

attributable to the birth, adoption or fostering of a child; military exigency leave; and family

leave for a covered service member; claimant demographics by age, gender, average weekly

wage, occupation, and the type of leave taken; percentage of claims denied and the reasons

therefore, including but not limited to insufficient information, and ineligibility and the reason

therefore; average weekly benefit amount paid for all claims and by category of leaves; changes

in the gross benefits paid compared to previous fiscal years; processing times for initial claims

processing, initial determinations, and final decisions; average duration for cases completed; and

number of cases remaining open at the close of such year.

(f) An employer, covered business entity or self-employed individual to whom the

treasurer has sent a request for wage, earnings or employment information for an employee, or

covered individual claiming family or medical leave benefits shall complete and file that

information not later than 10 days after the date the request was sent. If such employer, covered

business entity or self-employed person does not respond within those 10 days, then such

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employer, covered business entity or self-employed individual may be held liable for any related

costs incurred by the treasurer.

(g) The state treasurer may, from time to time, invest such monies in the trust fund as are

in excess of the amount deemed necessary for the payment of benefits for a reasonable future

period. Such monies may be invested in bonds of any political or municipal corporation or sub-

department of the commonwealth, or any of the outstanding bonds of the commonwealth, or

invested in bonds or interest-bearing notes or obligations of the commonwealth, or of the United

States, or those for which the faith and credit of the United States are pledged for the payment of

principal and interest (or in federal land bank bonds or joint stock farm bonds). The investments

shall at all times be so made that all the assets of the trust fund shall always be readily

convertible into cash when needed for the payment of benefits. The state treasurer shall have the

power to dispose of securities or other properties belonging to the trust fund when needed for the

payment of benefits.

Section 8. – Establishment of Department of Family and Medical Leave

(a) There shall be a department of family and medical leave within the executive office of

labor and workforce development which shall be administered by a director appointed by the

governor. Within 3 months of the effective date of this chapter, the director shall publish for

public comment and hearing, pursuant to section 2 of chapter 30A, proposed regulations

necessary to establish procedures for the collection of contributions, and for the filing and timely

processing of claims for benefits, under this chapter. Within 6 months of the effective date of

this chapter, the department shall establish and administer a family and medical leave program,

22________________


and commence the collection of contributions required under this chapter, provided, however,

that no contributions shall be required before July 1, 2019.

(b) Within eighteen months of the effective date of this chapter, the department shall pay

family and medical leave benefits as specified by this chapter. The department, by regulation,

shall set time standards for application processing which shall provide for notifying applicants

within 14 days of their eligibility for benefits under this chapter and shall pay benefits no less

than 14 days after the eligibility determination unless that determination occurs more than 14

days before the onset of eligibility in which case benefits shall be paid as soon as eligibility

begins. The department shall not require documentation of certification beyond the requirements

established by this chapter.

(c) The department shall notify the employer within five business days of a claim being

filed under this chapter, and shall use information sharing and integration technology to facilitate

the disclosure of relevant information or records with the written consent of the individual

applying for benefits. The department shall establish by regulation a system for appeals,

pursuant to chapter 30A, in the case of a denial of family or medical leave benefits. In

establishing such system, the department shall provide for administrative review in an

adjudicatory proceeding held pursuant to section 10 of chapter 30A and 801 CMR 1.02. Judicial

review of any decision of the department rendered pursuant to administrative review under this

subsection shall be commenced, pursuant to the provisions of section 14 of chapter 30A, within

thirty days of the date of the receipt of the notice of such decision, except that such judicial

review under this section shall be filed in the district court within the judicial district in which

23________________


the covered individual lives, or is or was last employed, or has his or her usual place of business,

and in such proceeding, the department shall be made a defendant.

(d) Information contained in the files and records pertaining to an individual under this

chapter are confidential and not open to public inspection, other than to public employees in the

performance of their official duties. However, an individual or authorized representative of an

individual may review the individual’s records or receive specific information from the records

upon the presentation of the individual’s signed and dated authorization, which shall remain in

force and effect until revoked in writing by such individual.

(e) The department shall conduct a public education campaign to inform workers,

employers, self-employed individuals, and covered business entities about the availability of

family and medical leave benefits, the requirements for receiving such leave and benefits, how to

apply for such leave and benefits, and all of the employer’s and covered business entity’s

obligations under this chapter. The department shall prepare and disseminate model multilingual

forms to be used by employers, covered business entities, employees and self-employed

individuals in the languages required for the workplace notice under subsection (a) of section 4

of this chapter.

(f) The executive office of labor and workforce development shall be responsible for the

interpretation and enforcement of this chapter and shall promulgate rules and regulations

pursuant thereto. An employer or covered business entity who fails or refuses make

contributions as required in section 6 shall be assessed 0.63% of its total annual payroll for each

year it so failed to comply, or fraction thereof, in addition to the total amount of benefits paid to

24________________


covered individuals for whom it failed to make contributions. The rate of assessment imposed

by this subsection shall be adjusted annually consistent with the provisions of subsection (a) of

section 6 and subsection (e) of section 7.

(g) This act shall be liberally construed as remedial legislation to further its purpose of

providing job-protected family and medical leave, and family and medical leave benefits. All

presumptions shall be made in favor of the availability of leave and the payment of family and

medical leave benefits under this chapter.

Section 9. – Retaliation Protections

(a) It shall be unlawful for any employer to retaliate by discharging, firing, suspending,

expelling, disciplining (through the application of attendance policies or otherwise), threatening,

or in any other manner discriminating against an employee for exercising any right to which such

employee is entitled under this chapter or with the purpose of interfering with the exercise of any

right to which such employee is entitled under this chapter.

(b) It shall be unlawful for any employer to retaliate by discharging, firing, suspending,

expelling, disciplining, threatening or in any other manner discriminating against an employee

who has filed a complaint or instituted or caused to be instituted a proceeding under or related to

this section, has testified or is about to testify in an inquiry or proceeding, or has given or is

about to give information connected to any inquiry or proceeding relating to this section.

(c) Any negative change in the seniority, status, employment benefits, pay, or other

terms or conditions of employment of an employee which occurs any time during a leave taken

25________________


by an employee under this chapter, or during the six-month period following an employee’s

leave or restoration to a position pursuant to this section, or of an employee who has participated

in proceedings or inquiries pursuant to this section within six months of the termination of

proceedings shall be presumed to be retaliation under this section. Such presumption shall be

rebutted only by clear and convincing evidence that such employer’s action was not retaliation

against the employee and that the employer had sufficient independent justification for taking

such action, and would have in fact taken such action, in the same manner and at the same time

the action was taken, regardless of the employee’s use of leave, restoration to a position, or

participation in proceedings or inquiries as described in this subsection. An employer found to

have threatened, coerced or taken reprisal against any employee pursuant to this subsection shall

rescind any adverse alteration in the terms of employment for such employee and shall offer

reinstatement to any terminated employee and shall also be liable in an action brought under

subsection (d) of this section.

(d) An employee or former employee aggrieved by a violation of this section or

subsections (d) and (e) of section 2 of this chapter may, within 3 years, institute a civil action in

the superior court. A party to the action shall be entitled to a jury trial. All remedies available in

common law tort actions shall be available to prevailing plaintiffs and shall be in addition to any

legal or equitable relief provided in this section. The court may: (i) issue temporary restraining

orders or preliminary or permanent injunctions to restrain continued violations of this section;

(ii) reinstate the employee to the same position held before the violation or to an equivalent

position; (iii) reinstate full fringe benefits and seniority rights to the employee; (iv) compensate

26________________


the employee for 3 times the lost wages, benefits and other remuneration and the interest thereon;

and (v) order payment by the employer of reasonable costs and attorneys' fees.

Section 10. A city, town or authority may adopt this chapter upon a majority vote of the

local legislative body or the governing body. For the purposes of this section, a vote of the

legislative body shall take place in a city by a vote of the city council subject to its charter, in a

town by a vote at town meeting, for an authority by a vote of its governing body, in a district, by

a vote of the district in a district meeting, and by any other political subdivision or

instrumentality, by a vote of its legislative body in accordance with its charter or enabling act.

SECTION 2. Clause (3) of subsection (c) of section 46 of chapter 151A of the General

Laws, as appearing in the 2016 Official Edition, is hereby amended by inserting after the third

comma in line 24 the following words:- family and medical leave,

SECTION 3. Section 1 of chapter 23 of the General Laws, as appearing in the 2016

Official Edition, is hereby amended by striking the word “and” from line 11, and inserting after

the word “relations” in line 11, the following words:- , and the department of family and medical

leave

SECTION 4. Subsection (b) of section 25 of chapter 23 of the General Laws, as

appearing in the 2016 Official Edition, is hereby amended by striking the number “17” from line

16, and inserting after the word “of” in line 16 the following words:- 18; and further amended by

inserting after the word “designee;” in line 19, the following words:- , and the director of the

department of family and medical leave, or a designee;

27________________


SECTION 5. The department of family and medical leave shall promulgate regulations to

implement this act not later than April 1, 2019.

SECTION 6. If any provision of this act or application thereof to any person or

circumstance is judged invalid, the invalidity shall not affect other provisions or applications of

the act which can be given effect without the invalid provision or application, and to this end the

provisions of this act are declared severable.

SECTION 7. This act shall take effect on January 1, 2019.

I have personally reviewed the text of this initiative petition for a Law Establishing a Paid

Family and Medical Leave Insurance Program, fully subscribe to its contents, and agree to be

one of its original signers.

First Ten Signatories:

Christina Barnes 29 Homestead Street #2, Boston, MA 02121

Paulena D. Bergeron 80 Bowles Street, Springfield, MA 01109

Kari L. Delia 157 Westminster Avenue, Arlington, MA 02474

Bethany Ann Fauteux 36 Dewolf Street, New Bedford, MA 02740

Deborah Frontierro 216 Washington Street, Gloucester, MA 01930

Khrystian E King 9 Victoria Avenue, Worcester, MA 01607

Christine E. Lavault 14 Spring Street, Fairhaven, MA 02719

Matthew C. McLaughlin 50 Flint Street #3, Somerville, MA 02145

Marites M. MacLean 44 Townsend Street, Fitchburg, MA 01420

Jane A. Piercy 8 Still Street, Brookline, MA 02446

28________________


Alternate Signatories:

Teka H. Lumumba-Nkrumah 10 Anoka Place, Lynn, MA 01905

Sandra M. Cormier 307 Marion Road, Wareham, MA 02571

Mary Enyonam Xatse 11 Derby Street, Unit 1, Worcester, MA 01604

Paul B. Drake 4 Judson Street, #1, Beverly, MA 01915

Jane Gould 80 Ocean Street, Lynn, MA 01902

Documents

CHAPTER 175M. FAMILY AND MEDICAL LEAVE - … · 2017-08-02 · 3 _____ Initials of Petitioner former member of the National Guard or Reserves) who is undergoing medical treatment,